the constitution itself is alterable by the ordinary legislature. Though this opinion seems founded on the first elements of common sense, yet is the contrary maintained by some persons. 1. Because say they, the conventions were vested with every power necessary to make effectual opposition to Great-Britain. But to complete this argument, they must go on, and say further, that effectual opposition could not be made to Great-Britain, without establishing a form of government perpetual and unalterable by the legislature; which is not true. An op

position which at some time or other was to come to an end, could not need a perpetual institution to carry it on and a government, amendable as its defects should be discovered, was as likely to make effectual resistance, as one which should be unalterably wrong. Besides, the assemblies were as much vested with all powers requisite for resistance as the convenIf therefore these powers included that of modelling the form of government in the one case, they did so in the other. The assemblies then as well as the conventions may model the government; that is, they may alter the ordinance of government. 2. They urge,

tions were.

that if the convention had meant that this instrument should be alterable, as their other ordinances were, they should have called it an ordinance: but they have called it a constitution, which ex vi termini means an act above the power of the ordinary legislature'. I an swer that constitutio, constitutium, statutum, lex, are convertible terms. Constitutio dicitur jus quod a principe conditure.' conditure.' Constitu.

tum, quod ab imperatoribus rescriptum statutumve est. 'Statutum, idem quod lex.' Calvini Lexicon juridicum. Constitution and statute were originally terms of the civil law, and from thence introduced by the ecclesiastics into the English law. Thus in the statute 25 Hen. VIII. c. 19. Sec. 1. Constitutions and ordinances are used as synonimous. The term constitution has many other significations in physics and in politics; but in jurisprudence, whenever it is applied to any act of the legislatures, it invariably means a statute, law, or ordinance, which is the present case. No inference then of a different meaning can be drawn from the adoption of this title; on the contrary, we might conclude, that, by their affixing to it a term synonimous with ordinance or statute. But of what consequence is their meaning, where their power is denied? If they meant to do more than they had power to do, did this give them power? It is not the name, but the authority that renders an act obligatory. Lord Coke says, an article of the statute 11 R. II. c. 5. that no person should attempt to revoke any ordinance then made, is repealed, for that such restraint is against the jurisdiction and power of the parliament,' 4 inst. 42. and again, though divers parliaments have attempted to restrain subsequent parliaments, yet could they never effect it; for the latter parliament hath ever power to abrogate, suspend, qualify, explain, or make void the former in the whole or in any part thereof, notwithstanding any words of re

*To bid, to fet, was the ancient legislative word of the English. LI. Hlotharii and Eadrici. Ll. Ine. LI Eadweidi. LI Aattelstani.

straint, prohibition, or penalty, in the former: for it is a maxim in the laws of the parliament, quod leges posteriores priores contrarias abrogant.' 4 Inst. 43.... To get rid of the magic supposed to be in the word Constitution, let us translate it into its definition as given by those who think it above the power of the law; and let us suppose the convention, instead of saying, "We the ordinary legislature establish a constitution,' had said, 'We the ordinary legislature, establish an act above the power of the ordinary legislature.' Does not this expose the absurdity of the attempt? 3. But, say they, the people have acquiesced, and this has given it an authority superior to the laws. It is true, that the people did not rebel against it and was that a time for the people to rise in rebellion? Should a prudent acquiescence, at a critical time, be construed into a confirmation of every illegal thing done during that period? Besides, why should they rebel? At an annual election, they had chosen delegates for the year, to exercise the ordinary powers of legislation, and to manage the great contest in which they were engaged. These delegates thought the contest would be best managed by an organized government. They therefore, among others, passed an ordinance of government. They did not presume to call it perpetual and unalterable. They well knew they had no power to make it so; that our choice of them had been for no such purpose, and at a time when we could have no such purpose in contemplation. Had an unalterable form of government been meditated, perhaps we should

have chosen a different set of people. There was no cause then for the people to rise in rebellion. But to what dangerous lengths will this argument lead? Did the acquiescence of the colonies under the various acts of power exercised by Great-Britain in our infant state, confirm these acts, and so far invest them with the authority of the people as to render them unalterable, and our present resistance wrong? On every unauthorative exercise of power by the legislature, must the people rise in rebel, lion, or their silence be construed into a sur render of that power to them? If so, how many rebellions should we have had already? One certainly for every session of assmbly. The other states in the union have been of opinion, that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly, chosen special conventions to form and fix their governments. The indivi duals then who maintained the contrary opinion in this country, should have the modesty to suppose it possible that they may be wrong, and the rest of America right. But if there be only a possibility of their being wrong, if only a plausible doubt remains of the validity of the ordinance of government, is it not better to remove that doubt, by placing it on a bottom which none will dispute? If they be right we shall only have the unnecessary trouble of meeting once in convention. If they be wrong, they expose us to the hazard of having no fundamental rights at all. True it is, this is no time for deliberating on forms of government. While

an enemy is within our bowels, the first is to expel him.. But when this shall be done, when peace shall be established, and leisure gi ven us for intrenching within good forms, the rights for which we have bled, let no man be found indolent enough to decline a little more 、 trouble for placing them beyond the reach of question. if any thing more be requisite to produce a conviction of the expediency of calling a convention at a proper season to fix our form of government, let it be the reflection,

6. That the assembly exercises a power of determining the quorum of their own body which may legislate for us.

After the establishment of the new form they adhered to the Lex majoris partis, founded in* common law as well as common right. It is the natural law of every assembly of men, whose numbers are not fixed by any other law. They continued for some time to require the presence of a majority of their whole number, to pass an act. But the British parliament fixes its own quorum: our former assemblies fixed their own quorum: and one precedent in favour of power is stronger than an hundred against it. The house of delegates therefore have‡ lately voted that, during the present dangerous invasion, forty members shall be a house to proceed to business. They have been moved to this by the fear of not being able to collect a house. But this danger could not authorise them to call that a house which was none: and if they may fix it at one number, they may at another, till it loses its fundamen

Bro. abr. Corporations, 31 34. Hakewell, 93+ Puff. Off, hom. 1. 2. c. 6. §. 12.

June 4. 1781.